One of the many benefits of the municipal inquiry service, which is available to members of the Municipal Legal Defense Program, is that our legal team gets a proverbial 30,000-foot view of issues and questions that the membership has. For example, when we see similar questions regarding a specific topic coming in from multiple municipalities, it lets us know that the topic needs to be addressed broadly, and not just on an individual basis.

One such topic of regular inquiry focuses on the requirement to record open public meetings:

1. What are the city or town’s legal obligations?
2. Must citizens in attendance be allowed to record the meeting themselves?

The first question is answered directly by state statute. The second requires a bit more nuance. Let’s take a closer look.

The Arkansas Freedom of Information Act clearly defines the city’s obligation to record its open public meetings. See A.C.A. § 25-19-106(d). This provision of the FOIA mandates that all open public meetings “shall” be recorded in a manner that, at a minimum, allows for the capture of sound.

The statute goes on to list a range of options that the city can utilize, such as “(A) a sound-only recording; (B) a video recording with sound and picture; or (C) a digital or analog broadcast capable of being recorded.” Your municipality may choose any of these options to record your meetings, or another option that isn’t listed, so long as the recording captured allows a listener to hear the audio of the meeting. The recording must then be kept for a minimum of one year and must be available in a format that the city can reproduce if an Arkansas citizen requests a copy of the recording.

The second question is not directly answered by the statute. It requires a deeper dive into both state and federal law and may implicate the First Amendment of the U.S. Constitution. Simply put, citizens should be allowed to record open public meetings provided they do not interfere or disrupt the meeting while doing so. Since the city is required to record its meetings, there is no real reason to try to prohibit them from doing so, and if the city tries, it may be inviting a First Amendment lawsuit, as recording has been held to be protected speech. See Telescope Media Group v. Lucero, 936 F.3d 740 (Eighth Cir. 2019).

That said, the citizen is only allowed to record from a place they are legally allowed to be, and they may not do so in a way that disrupts governmental operations. See Chestnut v. Wallace, 947 F.3d 1085 (Eighth Cir. 2020). If the member of the public is attending a public meeting, they may record the meeting from the public gallery.

“But Caleb, they’ll edit it to take it out of context!” Maybe, but so long as you’ve followed the law and recorded the meeting, such edits are easily refuted.

“But Caleb, they are using this for commercial purposes and putting it up on their monetized social media sites!” Perhaps, but doing so is not prohibited by law. Additionally, if the person is an Arkansas citizen, they could request a copy of the recording via a public records request under the FOIA and do so anyway. And again, such an action is not prohibited. All in all, the most risk-averse stance also happens to be the path of least resistance: Allow citizens to record open public meetings if they wish, so long as they do not disrupt the meeting while doing so.